ADJ13220426 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied

Petition for Reconsideration filed by Applicant from the Amended Findings and Award dated 12/14/2022

What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Substantial evidence / credibilityDefendant prevailedneck · back · bilateral shoulders · bilateral elbows · eyes · bilateral wrists

The court found the PQME reports to be accurate, well-reasoned, and substantial medical evidence, giving them greater weight than treating physicians' reports. The applicant's arguments against the PQME's findings were not raised at trial and were speculative or waived.

From the decision · page 4III. DISCUSSION The appeal filed by applicant essentially questions the substantially of the medical findings of Dr. Peter Alexakis, the PQME. These defense Exhibits, A, B and C, were found by the court to be accurate, well-reasoned and clear. They were held to be substantial medical evidence and better evidence that the reports of the treating physicians. Applicant argues that the PQME's failure to find injury to the applicant's neck and back are incorrect and speculative. They argue that the reports do not properly review all of the applicant's medical records and that the records, specifically the Facey medical records, are not offered into evidence. Applicant asserts that the PQME in the report dated 8/15/2020 indicates that he reviewed a Rehab 90 job analysis stating that applicant lifted up to 10 lbs. They refute this by asserting that the applicant testified to lifting objects up to 50 lbs. They argue that the PQME may have reviewed an unauthenticated job analysis. None of the arguments made by applicant on appeal were raised at the time of trial.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

PQME Dr. Peter Alexakis' reports were found to be accurate, well-reasoned, and substantial medical evidence.

Favours Defendant prevailed

The court relied on these reports over treating physicians' reports to deny the petition.

From the decision · page 4III. DISCUSSION The appeal filed by applicant essentially questions the substantially of the medical findings of Dr. Peter Alexakis, the PQME. These defense Exhibits, A, B and C, were found by the court to be accurate, well-reasoned and clear. They were held to be substantial medical evidence and better evidence that the reports of the treating physicians. Applicant argues that the PQME's failure to find injury to the applicant's neck and back are incorrect and speculative. They argue that the reports do not properly review all of the applicant's medical records and that the records, specifically the Facey medical records, are not offered into evidence. Applicant asserts that the PQME in the report dated 8/15/2020 indicates that he reviewed a Rehab 90 job analysis stating that applicant lifted up to 10 lbs. They refute this by asserting that the applicant testified to lifting objects up to 50 lbs. They argue that the PQME may have reviewed an unauthenticated job analysis. None of the arguments made by applicant on appeal were raised at the time of trial.

Applicant did not cross-examine the PQME or object to the admission of his reports at trial.

Favours Defendant prevailed

This failure waived challenges to the PQME's findings and supported the court's reliance on his reports.

From the decision · page 4More importantly, there is no evidence that Applicant attempted to question the validity of the PQME report prior to their presentation for trial. There is no evidence of a cross-examination of the PQME to questions his findings. As is well known, there is no requirement that the records reviewed by a physician be offered into evidence. It is enough that the doctor reviews them and comments accordingly, as he did in this case. While Applicant claims that there were complaint in those records, is not the equivalent of a finding of industrial causation. Applicant does not ever point to a place in those records noting industrial causation to the back, neck, bilateral shoulders, bilateral elbows or eyes. The mere fact that the applicant had complaints is not sufficient to

Applicant was working her regular job until termination for alleged theft; PQME found no temporary total disability and that applicant could have continued working if not terminated.

Favours Defendant prevailed

Supported denial of temporary disability claim.

From the decision · page 7TEMPORARY DISABILITY Applicant was working her regular job up until her termination based on the employer's claim that she was stealing money. Applicant does not refute this claim and only says that it arose after her injury. By the time of her termination in February of 2020, benefits in the form of PDAs were paid. More significantly, the applicant was performing her regular duties before she was terminated. Dr. Alexakis in his PQME report of June 21, 2021, found that she was not TTD and could have continued working her regular job had she not been terminated. (Exhibit C, Page 2). Based on that, she was not entitled to TD and her claim is denied as it was entirely after her termination.

What the panel did with the medical opinions

The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.

QMERelied upon

Found no injury to neck and back; reports were accurate, well-reasoned, and substantial medical evidence; no temporary total disability; applicant could have continued working if not terminated.

The court found the PQME reports to be accurate, well-reasoned, and substantial medical evidence, giving them greater weight than treating physicians' reports.

From the decision · page 4III. DISCUSSION The appeal filed by applicant essentially questions the substantially of the medical findings of Dr. Peter Alexakis, the PQME. These defense Exhibits, A, B and C, were found by the court to be accurate, well-reasoned and clear. They were held to be substantial medical evidence and better evidence that the reports of the treating physicians. Applicant argues that the PQME's failure to find injury to the applicant's neck and back are incorrect and speculative. They argue that the reports do not properly review all of the applicant's medical records and that the records, specifically the Facey medical records, are not offered into evidence. Applicant asserts that the PQME in the report dated 8/15/2020 indicates that he reviewed a Rehab 90 job analysis stating that applicant lifted up to 10 lbs. They refute this by asserting that the applicant testified to lifting objects up to 50 lbs. They argue that the PQME may have reviewed an unauthenticated job analysis. None of the arguments made by applicant on appeal were raised at the time of trial.

QMERelied upon

Found no temporary total disability; applicant could have continued working if not terminated.

PQME report found applicant was not temporarily totally disabled and could have continued working if not terminated.

From the decision · page 7TEMPORARY DISABILITY Applicant was working her regular job up until her termination based on the employer's claim that she was stealing money. Applicant does not refute this claim and only says that it arose after her injury. By the time of her termination in February of 2020, benefits in the form of PDAs were paid. More significantly, the applicant was performing her regular duties before she was terminated. Dr. Alexakis in his PQME report of June 21, 2021, found that she was not TTD and could have continued working her regular job had she not been terminated. (Exhibit C, Page 2). Based on that, she was not entitled to TD and her claim is denied as it was entirely after her termination.

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Defendant prevailed

Applicant's testimony about lifting weights and job duties

From the decision · page 6REVIEW OF EVIDENCE The court considered the testimony of the witness, applicant, who testified with the benefit of a Spanish interpreter. It was her testimony that her job duties in the last 5 years were producing documents which included lifting boxes of paper, sitting at her desk and walking to other buildings. She stated that she would lift 8 to 10 pages regular but on occasion would lift 50 lbs. She later testified that she would lift boxes of between 30 lbs. to 50 lbs. once or twice a week, based on her estimate. 70% of her time was spent sitting, according to her. During that time, she was using her hands and staring at the computer. During cross examination, she admitted that she was accused of stealing money at work and was terminated in February 2020 for stealing. (SOE 8:17-20). She stated that she was doing all of her job duties prior to her termination but was working slowly due to pain in her hands and low back (SOE 10:22-24) She could not recall the dates of the application she filed or the claim form.(SOE 9:1-3). She was also questioned about the complaints mentioned in the PQME report and despite missing information, she says that she told him about pain in her neck, back and related to her carpal tunnel syndrome. (SOE 9:21-25) The treating doctor's reports were not completed and therefore, insubstantial.

Testimony and credibilityfavours Defendant prevailed

No cross-examination or objection to PQME reports at trial

From the decision · page 4More importantly, there is no evidence that Applicant attempted to question the validity of the PQME report prior to their presentation for trial. There is no evidence of a cross-examination of the PQME to questions his findings. As is well known, there is no requirement that the records reviewed by a physician be offered into evidence. It is enough that the doctor reviews them and comments accordingly, as he did in this case. While Applicant claims that there were complaint in those records, is not the equivalent of a finding of industrial causation. Applicant does not ever point to a place in those records noting industrial causation to the back, neck, bilateral shoulders, bilateral elbows or eyes. The mere fact that the applicant had complaints is not sufficient to

ADJ13220426 · March 10, 2023

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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